44 F. 78 -

44 F1d 78

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Case Text

78

DDERAL REPORTER,

vol. 44.

V. GOULD

AMERICAN ROAD-MACH.

Co.

et

ca.

(Oflrcuo£t Oowrt, N. D. RHno0£8. July 22, 189</.) .

L

PATENTS FOR INVENTIONB-NoyELTY.

8.

The following specification of patent No. 862,679, granted May 10, 1887, to George "(Ill) In a machine for making roads, the coxq.bination of a carriaie or body frame, supported on front and rear traveling wheels, a diagonally disposed scraper-blade extending across and supported beneath said body-frame, and an extended longitudinally adjustable rear axle, Whereby one of thE\rear traveling wheels can be projected laterally beyond the working line of said diagonal scraper-blade, for the purpose set forth. "
W. Taft, is not void for want of novelty:
.

SAME-INFRINGEMENT.

Though, in addition to this long lateral, movable axle, the machine patented has a devlcefol' adjusting the frame on the axle by means of a rack and pinion, the patent is infringed by a machine having the long bind axle, on which the frame is fastened, by clamps held in place by nuts, the loosening of which enables the operator to shift the frame on the axle.

J. In this case the defendants are charged with the of patent No. 362.679, granted May 10, 1887, to Qeorge W. Taft, for a "machine for making. repairing, and cleaning roads." The scope and object of the invention, as stated in the specifications, relate "to improvements in that class of road-working machines in which a diagonally disposed scraper or plowing blade is mounted in conn 'ction with awheeledcarriage or supporting body, and provided with mechanism whereby the scraper can be adjusted to the different reqnired workingpositions. * * *, Another important object is to provide in a diagonal road-scraper or road-working machine a shifting rear axle, whereby the relation of the rear end of th El body and the rear traveling wheels can be varied or changed to meet different conditions of work to beperformed." The constr.uction of the machine in the particular mentioned in the last paragraph consists mainly in a hind axle much longer than the width of the frame which carries the scraper, and the frame so mount on its axle that the axle may be slid laterally in either direc'd tion, so that the frame may be neareTto one hub than the other, and the advantages of this feature in the construction are stated in the patent to be, thatUit in a Kreat measure overcomes rocking action of tbe body of the machine as the wheels pass over uneven ground. It also permits of tberear wheel being set over, as indicated by dotted lines, (Fig. 3,) so as to brace against the bank when plowing the second round, or wheIi tnoring the earth. turned up by the first furrow from the shoulder of the towards the center of the road. It'also allows an adjustwheels, so that the win?row of earth can be deposited inside t1W .1me,o( the wheel when desired, so that the wheel can get support against 'the windrow. )tlilso allows adjustment tOllvoid chopping action of the blade, by the wheels'runninK over clods when the machine is cutting deep, as well as facilitating changes in the relativeBLODGETT,

AMERICAN ROAD-MACH. dO. V. GOULD.

79

position of the rear wheels and carriage body, to meet or correspond with different positions of angular adjustment." The patent has 22 claims, covering many features of the machine not now in controversy, but infringement is charged in this case only of the thirteenth claim, which is: "(13) In a machine for working roads, the combination of a carriage or body frame, 8uppoHed on front and rear traveling wheels, a diagonally disposed scraper-blade extending across and supported beneath said body frame, and an extended longitudinally adjustable rear axle, whereby one of the rear traveling wheels can be projected laterally beyond the working line of said diagonal for the purpose set forth." . . The defenses .insisted upon are: (1) Want of patentable novelty. (2) That defendants· do not infringe. In support of their defense of want of patentable novelty defendants have introduced a large number of United States patents upon wheel plows,cultivators, seeding-machines, ditching-machines, and roadscrapers. .1 do not think there is any analogy between the machine now in question and the plow, culti vator, and seeding-machine patents which have been cited on the part of the defendants, as it is quite evident to me from the proof in the case that the: purposes for which the movable axle. of the complainant is. used is widely different from that of the tensible axles in: sulky plOws, cultivators, etc. The proof also shows two or more patents for ditching-machines, where the frame carrying the ditching mechanism is movable upon the axles, the object of such adjustment being to allow the wheels,or a portion of them, tl'iraveJ upon the bank while the cutting or ditching mechanism is working in the ditch. Sevl."ralpatents are also shown upon two-wheel road-scrapers, where the frame carrying the scraper is adjustable laterally upon the axle of the carrying wheels, of which the patents to Benedict & Cumming, of May, 1860, and the patent to Fleming, of June, 1883, are perhaps, all thingsoonsidered, as good types as any which can be selected from the numerous exhibits introduced. There is also a patent on a fourwheel road-scraper, granted to Cook, in September,1885, which has an extensible forward axle,that is, means for shortening and extending the forward axle for certain purposes in connection with working' the machine; but this feature of construction is recognized by the patentee in the patent now before the court, and a disclaimer inserted in the patent. From the proof in the case it appears that in a four-wheel road-scraper much difficulty is encountered by the side movement, or" slewing," as it is called, of the scraper from the line of draught, by reason of the side pressure upon the scraper when working diagonally, and the chief utility of this movable axle, as covered by the thirteenth claim, is that the wheel may be made to run in a rut, or bear against the vertical side of the ditch by the roadside or a furrow, so as to prevent this slewing movement of the portion of the structure which carries the scraper, and in the working of the machine it may be adjusted to any other conformation of the ground which furnishes a guide or abutment against which the wheel may be caused to run so as to prevent this sideways or slew-

..so

FEDERAL REPORTER,

vol. 44.

ing motion.· And it also appears from the proof that this difficulty does not apply to two-wheel machines, where there is a rigid connection between the team and the frame of the machine by means of the tongue, so that the team guides and controls the line in which the scraper works. In all the older devices which have been cited and put in evidence in this case I fail to find any four-wheel machines which contain the combination of elements covered by the thirteenth claim in question, and I have no doubt from the proof that the addition of this extended and adjustable axle to the road-machine has worked a decided and valuable improvement in the efficiency of the machine. I therefore conclude that the defen::;e of want of patentable novelty is not substantiated by the proof, although I am free to admit that the patent stands upon narrow footing, and must, under the terms of the claim, and in the light of the prior art, be strictly confined to four-wheel scrapers, containing the elements of this claim or their known equivalents. As to the claim that defendants do not infringe. The complainant's machine not only shows this long lateral, movable axle, but it also shows a device for adjusting. the frame upon the axle, by means of a .rack and, pinion, and it is insisted with much persistency on the part of the defendants that, inasmuch as the defendants do not use a rack and pinion for the purpose of changing the adjustment of the frame \lpon the axle, hence the defendants do not infringe; but it will be noticed that the claim does not cover the means by which the adjustment is effected, but only the extended longitudinally adjustable rear axle, in combination with the other elements of the claim. Amodel of the defendants' machine is put in evidence in the case, showing a long hind axle, upon which the frame carrying the scraper is fastened by means of clips or 'clamps held in place by nuts, the loosening of which enables the operator to shift the position of the frame upon the axle as readily as the complainant's frame is shifted upon the axle. It is true, the work ofshifting the position of the frame on the axle must be done by hand, butithat,· in my estimation. makes no difference. The feature of longitudinaladjustability is in the defendants' machine as clearly and for practical purposes probably as completely as in the complainant's, and hence I am compelled to find that the defendants infringe the thirteenth claim of complainant's patent as charged. A decree may be prepared finding that defEmdants infringe the thirteenth claim, and ordering an accounting.

CELLULOID MANUF'G CO. V. ARLINGTON MANUF'G CO.

81

CELLUWID MANUF'G Co. V. ARLINGTON MANUF'G CO.

et ale

(Circuit Court, D. New Jersey. September 23, 1890.)P"-TENTS FOR INVENTIONS-CELLULOID-INFRINGEMENT.

Letters patent No. 199,908, issued to the Celluloid Company for improvement in the manufacture of sheets of celluloid, consisting in the use of a slab of celluloid fastened upon a grooved plate through the operation of the contractile energy of the celluloid in cooling acting upon two or more elevations or depressions 1D the plate, so that the mass of celluloid is held :firmly in place while being planed o:lf into thin sheets, is not infIjnged by a device by which the celluloid is held on a supporting base by means of atmospheric pressure.

In Equity. Rowland Coz, William D. Shipman, and Frederic H. Betts, for complainant. John R. Bennett, for defendants.
GREEN, J. This is a suit in equity to restrain an alleged infringement by the defendants of letters patent No. 199,908, granted to the complainant as assignee of John W. Hyatt, for "improvement in the manufacture of sheets of celluloid and other plastic compositions." Of the validity of this patent, there is no question. It has been critically examined by the circuit court of the United States for the district of Massachusetts, in the case of Celluloid Manuf'g CV. v. American Zylonite Co., 31 Fed. Rep. 904, and sustained in all respects. The only question involved in the present litigation is that of infringement. The patent in question concerns itself with the manufacture of sheets of celluloid and other plastic compositions. Celluloid, as an article of commerce, had been known for years. It is a compound of which pyroxyline is the base or principal ingredient. Pyroxyline is made by subjecting vegetable fiber to the action of sulphuric and nitric acids. To the pyroxyline base is added a solvent, usually camphor and alcohol, which softens or dissolves it, and then pigment may be added to give color. The solvent converts the pyroxyline into a jelly-like mass, which, upon beiug subjected to heat and pressure, and to a thorough mechanical kneading, resolves itself into a £solid, homogeneous mass, which is called" celluloid." It is rough and porous in texture, and somewhat brittle, when cooled. By the reapplication of heat, however, it is rendered plastic, in which condition it can readily be caused to assume any desired form or shape by moulding or pressure. In the manipulation and treatment of celluloid, however, one difficulty seemed almost insuperable. Experience had shown that for the manufacture of mllny articles, and for use in many respects, thin sheets 'of celluloid were far preferable to the more usual forms of bar or cylinder. Cutting or planing such thin sheets from a larger mass or'block of celluloid had been accomplished, but not with such success as to justify the adoption of the processes. The great difficulty in the cutting or planing operation was that the plastic "material was apt to rise from the surface suplJorting it, and ride up the knife," thus producing a material irregularity in the cutting, or stopping the operation altogether. Evidently, the great desideratum was some tool ;or v.44F.no.1-6 '